Kenya’s High Court Strikes Down Anti-Counterfeit Act

Nearly three years after civil society groups challenged Kenya’s Anti-Counterfeit Act of 2008, which threatened access to lifesaving generic medicines by confusing “generic” with substandard and fake medicines, Kenya's High Court has found the act to be unconstitutional.

On April 20, 2012, Kenya’s High Court ruled that the act violates the right to life, human dignity, and health, as outlined in the Constitution of Kenya, and that intellectual property rights should not override these fundamental rights. The court further ordered Kenya’s Parliament to review the act and to remove ambiguities that could result in arbitrary seizures of generic medicines under the pretext of counterfeits. The case, which was filed by three people living with HIV, argued that the act could destabilize a legitimate supply of low-cost generic medicines, including antiretroviral treatments.

In her ruling, Judge Mumbi Ngugi said that "the Act is vague and could undermine access to affordable generic medicines since [it] failed to clearly distinguish between counterfeit and generic medicines."

This is a great success for the access to medicines movement in general, and for the activists supported by the Public Health Program’s Access to Essential Medicines Initiative and the Open Society Initiative for Eastern Africa in particular, who have worked tirelessly to campaign to reduce stock-outs of essential medicines and safeguard access to generic medicines in East Africa.